Knibbs and Preston and Anor (SSAT Appeal)
[2013] FCCA 479
•11 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KNIBBS & PRESTON & ANOR (SSAT APPEAL) | [2013] FCCA 479 |
| Catchwords: CHILD SUPPORT – Appeal from decision of Social Security Appeals Tribunal – where SSAT affirmed decision under review – review of decision by Tribunal – appeal to court from Tribunal on question of law – procedural fairness – whether Tribunal failed to accord procedural fairness to the appellant in failing to adjourn the hearing – whether Tribunal failed to accord procedural fairness to the appellant in not asking questions of the respondent on the appellant’s behalf – whether Tribunal failed to accord procedural fairness to the appellant by refusing to take into account post hearing submissions made by the appellant – whether the Tribunal failed to accord procedural fairness to the appellant by failing to reconvene the hearing. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: Jones v Dunkel (1959) 101 CLR 298 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2002) 128 FCR 553 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; 78 ALJR 992 Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 553 PJ & Child Support Registrar [2007] FMCAfam 829 Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) 27 Fam LR 517; FLC 93-072 SZMSA v Minister for Immigration and Citizenship [2010] FCA 345 |
| Applicant: | MS KNIBBS |
| First Respondent: | MR PRESTON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 1317 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 10 July, 21 September 2012 |
| Date of Last Submission: | 10 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2013 |
REPRESENTATION
| Counsel for the Appellant: | Ms Dinnen |
| Solicitors for the Appellant: | John Allanson & Associates (from 31 July 2012) |
| Counsel for the First Respondent: | Mr Waterstreet |
| Solicitors for the First Respondent: | Norton White |
| Solicitor for the Second Respondent: | Mr Gouliaditis |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The Amended Notice of Appeal filed on 27 May 2011 is dismissed.
The decision of the Social Security Appeals Tribunal made on 25 January 2011 and dispatched on 3 February 2011 is affirmed.
Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within seven (7) days of the date of these Orders and written submissions in opposition to any such application and any affidavit in support are to be filed and served within a further period of seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Knibbs & Preston & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1317 of 2011
| MS KNIBBS |
Applicant
And
| MR PRESTON |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an appeal from a decision of the Social Security Appeals Tribunal made on 25th January 2011 and dispatched on 3rd February 2011. The Tribunal set aside the decision under review and substituted a new decision that the rate of child support payable by the First Respondent for the period 30th November 2009 to 29th November 2011 was set at $10,400.00 per annum.
In her Amended Notice of Appeal filed on 27th May 2011, the Appellant seeks the following orders:
1. The decision of the Social Security Appeals Tribunal (SSAT) dated 25 January 2011 (date of despatch: 3 February 2011), appeal number [omitted], be set aside.
2. The matter be remitted to the SSAT to be determined according to law.
3. Such further order or orders as the Court thinks fit.
The Appellant relies on the following grounds of appeal:
1. The SSAT erred in law in that it failed to accord procedural fairness to the Appellant in failing to adjourn the hearing to a further date in circumstances where the Appellant became unfit and/or unable to adequately participate in the hearing.
Particulars
The Appellant relies upon her affidavit sworn 27 May 2011 and filed herein.
2. Further, or in the alternative, the SSAT erred in law in that it failed to accord procedural fairness to the Appellant in failing to adjourn the hearing to a further date in circumstances where the Appellant became unfit and/or unable to adequately make submissions on her own behalf as to the parties’ respective financial circumstances.
Particulars
The Appellant relies upon her affidavit sworn 27 May 2011 and filed herein.
3. Further, or in the alternative, the SSAT erred in law in that it failed to accord procedural fairness to the Appellant in failing to adjourn the hearing to a further date in circumstances where the Appellant became unfit and/or unable to adequately ask questions of the Respondent as to his financial circumstances.
Particulars
In circumstances where the Respondent did not provide a Statement of Financial Circumstances as he was directed to do, the questions as to the Respondent’s financial circumstances included inquiring as to:
a. the contents of document “B25”, provided to the Appellant for the first time at the hearing, including but not limited to:
i. the ultimate source of the sum of $72,839 deposited by Mrs P on 25 May 2010;
ii. whether the source of the funds deposited by
Mrs P was in truth the Respondent;
iii. the identity of account [omitted] to which 60,416.9 English pounds was immediately subsequently transferred (“the subsequent transfer”);
iv. the purpose of the subsequent transfer.
b. the terms of the alleged loan of 73,839 English pounds to the Respondent (“the Loan Inquiries”) disclosed for the first time at the hearing, including:
i. the date, if any, for its repayment;
ii. whether its repayment in whole or part was conditional upon the happening of any event, including the Respondent’s return to full time work;
iii. whether the alleged loan was in truth a gift and as such to be treated as income and not a liability of the Respondent;
iv. the purpose to which the alleged loan funds were to be applied, and were in fact applied;
c. the contents of document “B23”, provided to the Appellant for the first time at the hearing, including:
i. the nature of the inquiries made by the Respondent of the author of the document, including whether the Respondent had requested the author to provide only his “pay details” and not a letter outlining his current arrangement with that firm including but not limited to Mr Preston’s employment status, remuneration and commencement date, as he was directed by the Tribunal to do;
ii. the meaning of “tax month” 09-December 10”;
d. the terms of the alleged liability of the Respondent for the apartment service charges (“the Service Charges Liability Inquiries”), including:
i. the terms of any accommodation or forbearance in respect of the service charges liabilities;
ii. the date, if any, for payment of the alleged liability;
iii. whether its repayment in whole or part was conditional upon the happening of any event, including the Respondent’s return to full time work.
4. Further, or in the alternative, in circumstances where the Appellant became unfit and/or unable to adequately advance her own case and the SSAT did not adjourn the hearing, the SSAT erred in law in that it failed to accord procedural fairness to the Appellant in failing to ask questions of the Respondent as to his financial circumstances on the Appellant’s behalf.
Particulars
The Appellant repeats the particulars to ground 3
5. Further, or in the alternative, in circumstances where the SSAT did not make inquiries it ought to have made as alleged in ground 4, the SSAT erred in law in that it failed to accord procedural fairness to the Appellant and reached its decision having:
a. refused to take into account submissions of the Appellant in her letter dated 27 January 2011;
b. failed to reconvene the hearing following receipt of the Appellant’s letter dated 27 January 2011;
c. refused to take into account the submissions of the Appellant in her letter dated 31 January 2011; and/or
d. failed to reconvene the hearing following receipt of the Appellant’s letter dated 31 January 2011.
Background
The Appellant and the First Respondent are the parents of a child, [X][1], who was born [in] 1997. The child lives with the Appellant. The First Respondent is liable to pay child support to the Appellant.
[1] The name of the child is not published.
The Appellant applied for a change of assessment on 30th November 2008 on the grounds that:
a)She incurs additional costs to care for, educate or train the child in the way the parents intended; and
b)The most recent assessment, made on 21st September 2007, was inequitable because of the income, property, financial resources or earning capacity of the First Respondent.
A senior case officer decided that a reason had been established to depart from the formula assessment and changed the assessment by setting annual rates of child support payable by the First Respondent as follows:
·$16,700.00 from 30th November 2009 to 20th March 2010
·$17,951.00 from 21st March 2010 to 28th September 2010
·$22,364.00 from 29th September 2010 to 29th November 2011.
Both parties lodged objections, neither of which were successful.
The Appellant then appealed to the Social Security Appeals Tribunal on 27th August 2010.
The appeal was heard on 25th January 2011. The Appellant attended personally. The First Respondent, who lives in [omitted], attended by telephone but was represented at the hearing by his solicitor, Mr Mackrell.
The Tribunal noted that on the morning of the hearing the First Respondent supplied a 23 paragraph written submission, which the Tribunal declined to accept because of its late arrival. However, the Tribunal allowed the First Respondent to speak to the document at the hearing.[2]
[2] SSAT Decision paragraph [11]
The Appellant gave oral evidence to the Tribunal. The First Respondent gave oral evidence to the Tribunal by telephone. The Tribunal recorded the Appellant’s critical comments about the First Respondent’s previous dealings with the Child Support Agency, stating at paragraph 28 of its decision:
Ms Knibbs notes that Mr Preston did not co-operate with the Child Support Agency and, until these tribunal proceedings, did not provide any documents to corroborate his story. The senior case officer’s decision was made with limited information about Mr Preston’s circumstances. Be that as it may, the tribunal now has additional evidence about Mr Preston’s financial circumstances.[3]
[3] SSAT Decision at [28]
The Tribunal Decision
The Tribunal made its decision on the date of the hearing. The Reasons were dispatched on 3rd February 2011.
In its reasons for decision, the Tribunal referred to and set out the provisions of ss.98C and 117 of the Child Support (Assessment) Act 1989 relating to change of assessment of child support.
First of all, the Tribunal considered whether a ground to depart from the administrative decision existed. In doing so, it considered the reasons given:
a)the child’s special needs;
b)the child’s education costs; and
c)the First Respondent’s financial resources and earning capacity.
In considering the child’s special needs, the Tribunal had regard to s.117(2)(b)(ia) of the Act. The Tribunal accepted that the child had special needs because the child is musically talented and the costs of maintaining the child because of this need (tuition and instrument costs) were significantly affected. The Tribunal considered that need to have been established.
The Tribunal then considered the child’s education costs, having regard to s.117(2)(b)(ii) of the Act. The Tribunal was not persuaded that the child was being educated in a manner expected by both parents, finding that the decisions about which school the child attended were made solely by the Appellant. The Tribunal stated that:
The tribunal understands that Mr Preston has not seen ([X]) since 1998 and has not been involved in any decisions concerning [the child’s] upbringing, let alone education.[4]
[4] Ibid at [61]
The Tribunal found that, notwithstanding the high education costs at a private school which the child had attended, this reason had not been established.
The Tribunal then considered the First Respondent’s income. In doing so, it considered the departure set out in s.117(2)(c)(ia). The Tribunal noted that the First respondent had been working outside Australia and, because the Child Support Agency had been unable to ascertain his foreign income, it had applied s.58D of the Act. The administrative assessment was based on an adjusted taxable income of $39,236, being two-thirds of the male average weekly earnings.
The Tribunal found at [68]:
It is not clear whether Mr Preston has lodged [location omitted] tax returns in recent years. Without such information the tribunal considered using the two thirds of the male average weekly earnings figure to result in an unjust and inequitable level of child support. The evidence indicates that Mr Preston’s current income is equivalent to $53,000 per annum. The tribunal accepts that that figure is unpredictable and subject to variations in the exchange rate.[5]
[5] SSAT Decision at [68]
The Tribunal found that reason to be established.
The Tribunal then went on to consider the First Respondent’s earning capacity. It considered the requirements of s.117(2) and 117(7B). The Tribunal found that the earning capacity test was not established.
Having found that there were grounds to depart from the administrative assessment, the Tribunal then proceeded to consider whether it would be just and equitable to make a particular determination. In doing so, it had regard to s.98C(1)(b)(ii)(A) and subsection 117(4).
The Tribunal considered and rejected the Appellant’s request to backdate the departure order, noting that this would increase the level of arrears owed by the First Respondent. The Tribunal settled on a figure of $10,400.00 per annum, noting that:
95.The proposed order of $10,400 per annum is significantly greater than the $2,962 per annum liability under the current administrative formula but also markedly less than the current assessment of $22,364 per annum set by the senior case officer.[6]
[6] SSAT decision at [95]
The Tribunal considered whether the proposed order of $10,400.00 per annum would cause hardship to either parent and decided that it would not, saying:
The Tribunal understands that the proposed departure order will have no current effect on Ms Knibbs because she is not receiving child support anyway, regardless of the rate. The Tribunal acknowledges Ms Knibbs’ current financial difficulties but setting an artificially high rate of child support that it difficult and enforce and collect will not help her situation.[7]
[7] Ibid at [97]
The Tribunal found that, on balance, it would be just and equitable to make a departure order.
The Tribunal then considered whether, having regard to s.117(5), it would be otherwise proper to depart from the administrative assessment. The Tribunal considered that any increase in child support would reduce the Appellant’s reliance on family tax benefit, which was in line with Government policy that parents should financially support their children as far as they are able. The Tribunal was satisfied that it was otherwise proper to depart from the formula assessment.
In summary, the Tribunal noted that the Appellant was satisfied with the amounts of child support set by the senior case officer but lodged an appeal requesting that the departure order should be backdated to May 2008. However, the Tribunal considered that the rate of child support set by the senior case officer was too high.
The decision was:
On 25 January 2010, the tribunal decided to set aside the decision and to substitute a new decision that that rate of child support payable by Mr Preston for the period 30 November 2009 to 29 November 2011 is set as $10,400 per annum.
This means Ms Knibbs’ appeal is not successful.[8]
[8] Ibid at [107]
The Tribunal also noted:
After the hearing and after the tribunal had made its determination, but before this statement of reasons was despatched, the Registry received approximately 200 pages of additional material from Ms Knibbs. This additional material was not accepted as evidence, nor sighted by the tribunal members due to the fact that the tribunal had already reached its decision.[9]
[9] Ibid at [12]
The Appellant wrote a 32 page letter to the Tribunal and delivered it by hand on 27th January 2011. The letter contained a further bundle of documents.
On 31st January 2011 the Appellant hand delivered a further letter to the Tribunal, again with a bundle of documents.
The documents were returned to the Appellant under cover of a letter from the Tribunal dated 31st January 2011, saying:
Additional Material Not Accepted
The Tribunal has received material from you after the hearing. The presiding member has determined that this material will not be taken into account as evidence in the review.
These documents are being returned to you with this letter.[10]
[10] Affidavit of Ms Knibbs 27.5.2011 Annexure “H”
On 4th March 2011 the Appellant filed a Notice of Appeal against the decision of the Social Security Appeals Tribunal.
On 27th May 2011 the Appellant filed an Amended Notice of Appeal.
The Appeal was heard on 10th July and 21st September 2012. The decision was reserved.
An Application in a Case was filed by the First Respondent, seeking leave to re-open his case. The Application was opposed.
On the return date of the Application, the parties agreed that the First Respondent should have leave to reopen his case for the following limited purposes:
a)The First Respondent was granted leave to issue a subpoena to the Principal Member of the Social Security Appeals Tribunal for the production of the audio recording of the proceedings;
b)The parties and their legal representatives were granted access to the recording when produced;
c)Leave was granted to any party who sought to do so to file and serve written submissions limited to the contents of the recording; and
d)The recording was to be admitted into evidence.
The Solicitor for the First Respondent filed a short submission on 10th December 2012, relating to the contents of the recording.
No other additional submissions were received.
Evidence
The Appellant relied on the following affidavits:
a)Her affidavit of 27th May 2011;
b)Her affidavit of 10th June 2011;
c)The affidavit of Dr J of 10th June 2011;
d)The affidavit of Dr J of 5th July 2012;
e)The affidavit of Ms F of 31st July 2012; and
f)The affidavit of Major D sworn 31st July 2012.
Dr J is a medical practitioner who has treated the Appellant since about 1986. He was unable to attend Court on the first day of the hearing, 10th July 2012, as he was recovering from an illness, as set out in his affidavit of 5th July 2012. However, he was able to give evidence by telephone.
Dr J’s affidavit of 10th June 2011 annexes a letter he wrote dated 23rd May 2011. In the letter, Dr J sets out that the Appellant suffers from multiple illnesses and injuries and provides a list of eight of them. Those that appear to be relevant are:
2. Post traumatic stress syndrome for which she attends a Psychologist for weekly treatments this has been from 2006 and is ongoing.
This has been triggered by bullying from [omitted].
…
4. She suffers from depression and has been to a Psychiatrist for this. This came when she was [omitted].[11]
[11] Affidavit of Dr J 10.6.2011 Annexure “A”
Dr J deposed that:
…Associated with her Post Traumatic Stress Disorder/Reactive Depression, Ms Knibbs suffers from symptoms of anxiety, panic – fight or flight mode, stress, palpitations, nausea which involves triggers of old trauma resurfacing after she has been re-exposed to a particular person or event she has had a history of trauma and bullying.
3. Ms Knibbs presented at my surgery on 28 February 2011 she was particularly distressed and suffering from Post Traumatic Stress Disorder symptoms. She stated that after she read Mr Preston’s submissions and in particular when Mr Preston’s voice came over the loud speaker it was frightening, confronting and humiliating. All this caused confusion and panic to such an extent that she ran out of the hearing in a panic state – ‘fight or flight mode’ and could not adequately participate in the hearing.
4. During the consultation, Ms Knibbs described to me what had occurred at the hearing on 25 January 2011 she said words to the effect “I heard Mr Preston’s voice come over the telephone speaker saying that we never had a relationship and that he wanted me to have an abortion and then I panicked and left the room”. She explained to me the effect it had on her as stated in her affidavit of 27 May 2011.
5. I observed Ms Knibbs to be distressed and depressed in relation to the matters she described.
6. Ms Knibbs told me she sought help and support from her Salvation Army Chaplain, Major D, after the hearing on a number of occasions who supported Ms Knibbs.
7. In my opinion, Ms Knibbs was suffering from Post Traumatic Stress Disorder/.Reactive Depression prompted by reading the submissions handed to her and hearing Mr Preston’s voice over the loud speaker, this caused her severe anxiety, panic attacks, stress, palpitations, nausea, triggers of suppressed trauma resurfacing in relation to issues relating to her relating to her relationship with Mr Preston and his behaviour towards her and her child. The confrontation aggravated her Post Traumatic Stress Disorder/Reactive Depression at the hearing. This caused confusion and panic to such an extent that she ran out of the hearing room.
8. In light of my observations of Ms Knibbs’ condition, and conclusion that she had suffered from Post Traumatic Stress Disorder/Reactive Depression, I referred her to see a psychiatrist, Dr B, for three visits. Ms Knibbs attended on Dr B for her first visit on 28 February 2011.[12]
[12] Affidavit of Dr J 10.6.2011 at paragraphs [2]-[8]
In cross-examination by Mr Waterstreet of counsel, who appeared for the First Respondent, Dr J agreed that he had not attached any report from the psychiatrist, Dr B. He said that he was sure that he had a report from Dr B but did not have it on him.
It was put to Dr J that the transcript of the Tribunal hearing of 25th January 2011 did not contain the words recounted to him by the Appellant. Dr J said that he had received that information from the Appellant and he relied on what she had told him.
The Appellant did not file an affidavit from Dr B.
The hearing was adjourned to 21st September 2012.
Over the period of the adjournment, the Appellant filed the affidavits of Ms F and Major D on 31st July 2012.
Ms F was required for cross-examination.
In her affidavit affirmed on 31st July 2012, Ms F deposed that she was a Registered psychologist and set out her qualifications. She deposed that she had been treating the Appellant since March 2006.
Ms F deposed:
6. In general the Applicant[13] suffers from:
a. Anxiety
b. Depression
c. Past Trauma
[13] sic
7. In terms of diagnosable conditions according to the DSM-IV-TR, the Applicant suffers from:
a. Generalised Anxiety Disorder;
b. Post-Traumatic Stress Disorder;
c. Reactive Depression.[14]
[14] Affidavit of Ms F 31.7.2012 at paragraphs [6]-[7]
Ms F deposed that “in or around late January or early February 2011”[15] the Appellant telephoned her “in a highly emotional state of panic”[16] and attended for an unscheduled consultation. Ms F did not keep notes of that meeting as it was not a scheduled appointment.
[15] Ibid at [11]
[16] Ibid
During that meeting, the Appellant gave Ms F an account of the Tribunal hearing in “a state of severe distress”.[17] She complained about the Tribunal members and said:
“I ran out as I was so anxious I couldn’t cope”.[18]
[17] Ibid at [12]
[18] Ibid
Ms F stated that she had since been provided with a copy of the transcript of the Tribunal proceedings. She expressed the opinion that:
19.For [Ms Knibbs] to leave such a proceeding indicates to me a high level of distress as in my opinion she has a great deal of respect for the law and wouldn’t do such a thing unless she was incredibly dismayed.
20.The statements recorded from the Applicant on pages 33-34 of that transcript are consistent with my opinion that the Applicant had suffered a PTSD episode at hearing.
21.Her return to the proceeding after she fled the room is consistent with her general respect for the law. In my opinion based on the transcript and my knowledge of her…It appears she was able to participate to the extent that she would always fight for ([X]’s) well-being where able.[19]
[19] Affidavit of Ms F 31.7.2012 at [19]-[21]
In cross-examination, Ms F told Mr Gouliaditis, who appeared for the Child Support Registrar, that the Appellant could not communicate and tended to go off on tangents. In January 2011 the Appellant told her that she was unable to communicate with the Tribunal. She could not put across what she wanted to say. Ms F said that she could see why the Appellant would feel that she was not given a hearing.
Major D was not required for cross-examination. Her affidavit evidence was that she is a chaplain with the Salvation Army. The Appellant attended her office at [omitted] on 25th January 2011 in an upset state, complaining about the Tribunal hearing and the behaviour of the Tribunal members and the First Respondent’s solicitor in particular. She told Major D that she had run out of the room but later returned. Major D had seen her on a number of occasions on that date and had spoken to her on the telephone.
The Appellant relied on her affidavits of 27th May and 10th June 2011. she also filed an affidavit sworn 10th May 2011, to which she had annexed a copy of the transcript of the Tribunal hearing.
In her affidavit of 27th May 2011, the Appellant provides a lengthy and detailed account of her attendance at the Tribunal hearing and her impressions of the events that took place.
The Appellant describes in her affidavit how she felt humiliated at hearing the First Respondent speaking over the telephone about a proposal that she should have terminated her pregnancy. She deposed:
I am a member of [omitted] and abortion is against my religious beliefs and my personal beliefs. I started to relive in my mind the events back in 1996 when Mr Preston had first asked me to terminate my baby in a very malicious manner.
22.I remember then hearing Mr Preston say out loud over the telephone “earlier paragraphs” (page 21 line 21) directing everyone back to those matters and at this point I felt extreme shame in front of the two men present and one woman and my distress grew even more.
23.I refer to page 21 line 32 and the transcription that Mr Preston stated only the words “I then…”. My recollection is that Mr Preston actually started to recite out loud his submissions and read out the first 3 paragraphs. However, I note that this is not recorded on the transcript.
24.I refer to page 21 line 33 and the transcription of Mr D stating “I might have to call a brief adjournment. We’ll terminate…” and Ms S stated “The hearing is suspended at 10.05 am”. As Mr Preston began speaking I began to faint and my head was lowering down towards the conference table. I began reliving the event in my mind. I felt very scared and fearful of Mr Preston and confused. I began to have an anxiety attack. I stood up and ran out of the hearing room. Two security men ran after me and said “are you alright?” I didn’t know where I was going. I sat outside another room on a chair crying. I then asked one of the men “excuse me, where is the ladies room?” and was sent there where I spent about 2 minutes splashing cold water on my face.
25.As best I can recall, we were adjourned for about 7 minutes.[20]
[20] Affidavit of Ms Knibbs 27.5.2011 at [21]-[25]
The Appellant deposed that she was very distressed when she returned to the hearing room.
The Appellant went on to depose:
27.I do not recall absorbing all of the next portion of the proceedings at all. When I heard Mr Preston say for the first time in his evidence that the deposit of 72,839 recorded in B25 was a loan from his mother (page 27 line 14), I did not know I could ask for more time to consider this further and make investigations, or ask questions about it. My mind was on my child and Mr Preston’s statements about the termination. No one said to me I could ask for an adjournment of the hearing to another day. If I had known, I would have asked for it so I could seek treatment, properly recover and be in a clear thinking state of mind.[21]
[21] Affidavit of Ms Knibbs 27.5.2011 at [27]
The Appellant deposed that on 27th January she delivered by hand a 32 page letter and a bundle of documents to the Tribunal. On 31st January she hand delivered a further letter, together with a bundle of documents. She further deposed:
32.In my letter I did not request for the proceedings to be re-listed or for me to re-open my application before the Tribunal to make these submissions, as I did not know that was something I could do.[22]
[22] Ibid at [31]
The Appellant claims in her affidavit that certain parts of the hearing were not transcribed.
In her affidavit of 10th June 2011 the Appellant further described how she felt intimidated at the Tribunal hearing. She complained of the behaviour of one of the members of the Tribunal, who she claimed prevented her from speaking.[23]
[23] Affidavit of Ms Knibbs 10.6.2011 at [6]-[8]
In cross-examination, the Appellant reiterated that she had had a panic attack during the hearing. She conceded that she did ask questions after she returned to the hearing room but said that after she was handed a copy of the First Respondent’s submission she was not in a position to ask clear, concise questions. She said that she was dissociating; her mind was concentrating on more pressing matters.
It was put to her by Mr Waterstreet of counsel that the First Respondent did not read the first eight paragraphs of the written submission, but she asserted that he did. Mr Waterstreet further put to her that there was no record on the transcript of his having read out those paragraphs, but the Appellant repeated that she did hear him say those words, and that was what triggered the panic attack and she left the room.
It was further put to the Appellant that she did not suggest in her affidavit that paragraphs 1 to 8 of the document were read out. Her reply was that a few things were missing from the transcript.
It was further put to the Appellant that she had not provided an affidavit from Dr B, the psychiatrist. Her answer to that was that Dr B did not do court work and she did not instruct her solicitors to obtain an affidavit from Dr B.
Submissions
The parties mainly relied on their written submissions, but short oral submissions were made at the hearing. Ms Dinnen of counsel, for the Appellant, noted that the First Respondent did not provide an affidavit from his solicitor, Mr Mackrell, who was present at the hearing. She submitted that the Court could draw a Jones v Dunkel[24] inference from that omission.
[24] (1959) 101 CLR 298
Ms Dinnen also submitted that the evidence of Ms F, the psychologist, was that the Appellant was not capable of rational decision making and that the Court should distinguish the decision of Minister for Immigration and Citizenship v SZNVW[25], where, unlike this case, the Respondent sought at hearing to rely on a medical condition as the reason for his forgetful and vague behaviour and there was no suggestion that his condition impaired in any substantial way his capacity for rational decision-making in his own interests so far as the presentation of his case was concerned.
[25] (2010) 183 FCR 575
Mr Waterstreet, for the First Respondent, submitted that this was not a case where judicial review was available. In particular, there was nothing in the Appellant’s affidavit suggesting that the First Respondent had read anything out from those first eight paragraphs. The Court should rely on the transcript.
Mr Gouliaditis, for the Child Support Registrar, submitted that this was not a case where the decision in SZNVW was distinguishable. The Appellant had left the hearing room but later returned and asked questions. The Appellant had not showed enough to constitute an inability to participate meaningfully in the proceedings.
All three parties prepared detailed written submissions.
The Appellant’s Submissions
Counsel for the Appellant relied on the following:
a)Submissions dated 8th March 2012; and
b)Submissions in reply dated 9th July 2012.
The Appellant submits that the central question for determination is the width of the extension of the principle applied in Minister for Immigration and Multicultural Affairs v Bhardwaj[26], where the High Court held that the conduct of a Refugee Review Tribunal hearing in the absence of the applicant, who was absent because of illness, was invalid for jurisdictional error. The principle has been extended to encompass situations where applicants, whilst ill, still physically participate in the hearing (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[27]).
[26] [2002] HCA 11; (20020 187 ALR 117
[27] [2003] FCAFC 126; (2002) 128 FCR 553
In the alternative to the grounds of appeal focussing on the Appellant’s health, are those which rely upon the principles as applied in PJ & Child Support Registrar[28] Riethmuller FM[29] set aside a decision of the Social Security Appeals Tribunal on the grounds that the Tribunal did not afford the appellant procedural fairness by failing to provide the appellant with fair notice of the issues to be determined.
[28] [2007] FMCAfam 829
[29] As his Honour then was
In this case, it is submitted that the First Respondent was required to produce documents B23 to B25 not less than 14 days prior to the hearing, but the Appellant did not receive them until the morning of the hearing and therefore, it is submitted, had no meaningful opportunity to consider and respond to the contents of those documents. The Tribunal accepted those additional documents late because “there were only a few documents and they were easily digestible, so we thought Ms Knibbs would not have been overly disadvantaged by the short notice”.[30]
[30] Transcript page 7 lines 26-28
This, it is submitted, was a denial of procedural fairness. The disadvantage was incapable of being remedied when the Appellant suffered an anxiety attack during the hearing.
In the Submissions in Reply, counsel for the Appellant submitted that the Social Security Appeals Tribunal is required by s.88 of the Child Support (Registration and Collection) Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
The Appellant refers to the decision on appeal in Minister for Immigration and Citizenship v SZNCR[31], where Tracey J held at [30]:
Following SZNVW an applicant who has a diagnosed mental condition which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.[32]
[31] [2011] FCA 369
[32] [2011] FCA 369 at [30]
The Appellant invited the Court to make that specific finding.
It is submitted that whilst the Appellant did participate, to some extent, in the proceedings before the Tribunal, the nature of her medical condition at that time and the legitimate expectations she had of the conduct of the hearing significantly altered her ability in a “real and meaningful” way.
The submission is that the Appellant’s evidence is that she was disabled by her psychological deficits. In particular:
a)She suffered numerous medical conditions including anxiety and stress disorders and depression at the time of the Tribunal hearing, of which there was no evidence before the Tribunal and to which the Tribunal therefore had no regard in the conduct of the proceedings, or the findings it made (or failed to make).
b)She had formed expectations of what evidence would be provided by the First Respondent and how the hearing would be conducted from the pre-hearing teleconference with the Tribunal member, which were not borne out.
c)The hearing commenced in a manner which almost immediately gave rise to symptoms of anxiety, panic and confusion, culminating in a panic attack.
d)The Appellant’s distress in relation to the “trigger” of the First Respondent’s evidence regarding the disputed circumstances in which her child was conceived and the suggested abortion is confirmed in the transcript of the proceedings, where she was fixated on that evidence instead of the real issues in the proceedings.
e)As a result, the Appellant was unable to put forward her case properly, object to evidence and submissions or ask questions of the Tribunal about her ability to do so. This was exacerbated by the Tribunal interrupting her and refusing to allow her to speak on certain occasions.
It is further submitted that although the Tribunal gave the Appellant the opportunity to make submissions as required by s.103C of the Child Support (Registration and Collection) Act, her psychological condition denied her the opportunity to give such evidence and present arguments which would be appropriate to the issues for determination.
Counsel for the Appellant further submitted that, even absent a finding that the Appellant was suffering from psychological deficits that prevented her from giving evidence and presenting arguments, the Tribunal should have provided the Appellant with more assistance during the proceedings to identify applications or submissions which ought to have been put by her, and suggest the procedural steps she could have taken, including seeking an adjournment to another day.
The Appellant refers to the guidelines identified by the Full Court of the Family Court for dealing with litigants in person, in Re F: Litigants in Person Guidelines[33] and submits that the Tribunal failed to assist the Appellant as a self-represented litigant in each of the requirements in the guidelines, drawing support from the decision of PJ & Child Support Registrar (SSAT) Appeal[34] at [55].
[33] [2001] FamCA 348; (2001) 27 Fam LR 517; FLC 93-073
[34] [2007] FMCAfam 829
The First Respondent’s Submissions
The First Respondent relies on:
a)Written Submission dated 25th May 2012; and
b)Further Submissions dated 10th December 2012.
The First Respondent submits that the potential question of law in the present case is whether or not the failure to adjourn, when no adjournment was sought and where the Appellant appeared, gave evidence and made oral submissions, has the effect of depriving the Appellant of the hearing required by the legislation. The contention that an appeal lies on a question of law as a result of a failure to adjourn, particularly where no adjournment was sought and where the Appellant appeared and participated in the hearing, is unsupported by the Child Support (Registration and Collection) Act.
Similarly, the First Respondent submits that a contention that the Tribunal failed to accord procedural fairness because it failed to ask questions of the First Respondent as to his financial circumstances cannot amount to a statement of a question of law because the nature and extent of the questions which should be asked are matters for the Tribunal to determine in light of the provisions of ss.988 and 103N of the Act.
Section 103N of the Child Support (Registration and Collection) Act provides:
(1) The SSAT, in reviewing a decision under this Part:
(a)is not bound by legal technicalities, legal forms or rules of evidence; and
(b)is to act as speedily as a proper consideration of the review allows; and
(c)in determining what a proper consideration of the review requires, must have regard to the objective laid down by section 88.
(2)The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
In respect of the Appellant’s first three grounds of appeal, all of which relate to a claim that the Tribunal erred in law by failing to afford procedural fairness by failing to adjourn the hearing when the Appellant became unfit or unable adequately to participate in the hearing, to make submissions on financial circumstances and ask questions of the First Respondent, it is submitted that these grounds are insufficient to found an appeal because:
a)The Appellant was not unfit, nor was she unable to adequately participate in the hearing; and
b)Even if the Appellant established some level of unfitness there was not in the circumstances, having regard to the legislative requirements, a failure to afford procedural fairness.
The First Respondent relies on the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[35], where it was held that there is nothing to suggest that the Tribunal should take upon itself the role of ensuring that all possible lines of argument which might be available to an applicant in any case are pursued to the applicant’s best advantage, nor is the Tribunal obliged to conduct an enquiry to discover whether the applicant’s case might be better put or supported by other evidence.
[35] [2004] HCA 32; (2004) 207 ALR 12; 78 ALJR 992
As to the Appellant’s fourth ground, it is submitted that the Tribunal did in fact ask numerous questions of the First Respondent, and to suggest that the Tribunal failed to provide procedural fairness to the Appellant in failing to ask questions of the First Respondent as to his financial circumstances misstates what occurred because the Tribunal did ask relevant questions.
Further, it is not the role of the Tribunal to ask questions on behalf of the parties but to inform itself of the facts.
As to the Appellant’s Ground 5, the First Respondent submits that the Tribunal is under no statutory obligation to consider material that is brought to its attention after the conclusion of a hearing. It is a matter for the Tribunal to decide whether or not it will entertain further evidence.
Further, the material that the Appellant provided to the Tribunal after the hearing was not served on the First Respondent or, presumably, the Second Respondent. Accordingly it could not have been considered.
The Second Respondent’s Submissions
The Second Respondent Child Support Registrar relies on:
a)Second Respondent’s Submissions dated 23rd March 2012; and
b)Second Respondent’s Supplementary Submissions dated 18th September 2012.
The Child Support Registrar does not agree with the submissions on behalf of the Appellant in respect of the decisions in Bhardwaj[36] or SCAR[37], submitting that neither judgment assists the Appellant.
[36] supra
[37] supra
The Registrar cautions, correctly in my view, that some care must be taken in applying decisions regarding the provisions of the Migration Act 1958 (Cth) to the present case. The critical question is whether the SSAT failed to give the Appellant a meaningful opportunity to make “oral and written submissions”, as she was entitled to do under s.103C(1) of the Child Support (Registration and Collection) Act.
The Registrar submits that the decision in Bhardwaj does not stand for the proposition pressed by the Appellant:
The issue in that case was not whether a decision following a hearing in the absence of an ill applicant was invalid for jurisdictional error, but whether the tribunal could re-open its decision after it discovered that, by administrative error, it had failed to give the applicant an opportunity to appear and give evidence and present arguments (a letter stating that the applicant was ill and would be unable to attend the next day, and requesting an adjournment, did not come to the attention of the tribunal through oversight). The High Court held that the tribunal had failed to discharge its function properly and was not functus officio (meaning it could ignore its previous decision and make a fresh decision). That was not simply because there had been a failure to accord procedural fairness, but because the statute there under consider required the tribunal to give the applicant an opportunity to appear and give evidence and present arguments and the tribunal had denied the applicant a reasonable opportunity against him…[38]
[38] Second Respondent’s Submissions page 4 at [12]
The Registrar also submits that the judgment of the Full Court of the Federal Court in SCAR also does not assist the Appellant. The primary judge had found that the respondent was not in a fit state to represent himself at the tribunal, and Full Court held that, accordingly, the type of “fair hearing” required by the Migration Act was not provided to the respondent. The tribunal had found the respondent’s evidence concerning a number of his claims to be “vague, confused and implausible” and he was found not be a credible witness. The Full court noted that (at [14]):
The evidence put before the primary judge suggested that a possible explanation of why the respondent’s evidence to the Tribunal had been “vague” and “confused” was because of his distress at the news of his father’s death and because of the medical treatment had had received in respect of that distress. Clearly if the Tribunal had been aware of the respondent’s distress it may have proceeded differently. At the very least it may not have made the credibility findings it did make in light of the alternative explanation for the inadequacy of that evidence.[39]
[39] Cited at Ibid at [13]
As the Registrar points out, in this case the Appellant’s evidence was wholly accepted. Unlike in SCAR, where the psychologist’s observations were made either on the day of the hearing or very soon after, the observations by Dr J were not made until at least a month after the hearing.
Further, the Registrar submits that the decision of the Full Court of the Federal Court in SZNVW[40] presents “an insurmountable obstacle to the relief sought by the Appellant. Keane CJ, with whom Emmett J agreed said:
[20]In my respectful opinion, s 425 of the Act[41] did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20]-[25], the contention that an applicant’s psychological difficulties were such as to deprive him of the “meaningful opportunity” required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present arguments in support of his claims, to understand and to respond to questions put to him.
[40] supra
[41] i.e. the Migration Act
…
[22]None of [the provisions of the Migration Act 1958] affords support for the view that the Tribunal is duty-bound to press an applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant top present his case in the best possible light.
(Emphasis added in the submission).[42]
[42] Second Respondent’s Submissions 23.3.2012 page 5 at [15]
The Registrar’s submission is that the Appellant’s evidence suggests that her anxiety and stress levels during the hearing were such that she did not present her case, or conduct herself during the hearing, as well as she might otherwise have done.
As to Ground 4 of the Appeal, the Registrar submits that the evidence does not support the ground. As to the submissions, the Registrar submits that the decision in PJ and Child Support Registrar (SSAT Appeal)[43] can be distinguished on the facts.
[43] supra
Finally, as to Ground 5, the Registrar submits that there is no statutory power for the SSAT to re-open a decision once validly made.
Conclusions
The first four of the Appellant’s five grounds of appeal are all predicated upon a finding by the Court that the Appellant became unfit or unable to participate in the Tribunal hearing because of her psychological condition, which she claims was brought about by hearing the First Respondent’s voice over the telephone reading out parts of a submission which were deeply distressing to her.
There is no direct parallel between s.425 of the Migration Act 1958 (Cth), which relates to the conduct of a review by the Refugee Review Tribunal, and s.103C of the Child Support (Registration and Collection) Act, which refers to the conduct of a review by the SSAT.
Subsection 425(1) of the Migration Act provides that:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Subsection 103C(1) of the Child Support (Registration and Collection) Act provides that:
(1) A party to a review under this Part may make:
(a) oral submissions to the SSAT; or
(b) written submissions to the SSAT; or
(c) both oral and written submissions to the SSAT.
Nevertheless, the decisions of the Federal Court in SCAR[44], SZNVW, SZNCR and SZMSA v Minister for Immigration and Citizenship[45] give a helpful guide as to the test to be applied.
[44] supra
[45] [2010] FCA 345
In SCAR, the Full Court of the Federal Court held at [41]:
Given the findings of the primary judge that the respondent was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s 425 of the Act was not a meaningful one. Through no fault of the Tribunal it was not aware of this. Even so, the Tribunal did not comply with s 425 of the Act. It did not extend a meaningful invitation to the respondent. The respondent did not receive the fair hearing required by the Act. Consequently the Tribunal made a ‘jurisdictional error’.[46]
[46] [20093] FCAFC 126 at [41] per Gray, Cooper and Selway JJ
In my view, the decision of Keane CJ (with whom Emmett J agreed) in SZNVW at [19]-[20] and [22] sets out what must be shown for a person such as the Appellant in order to establish that a tribunal hearing was not a fair one because of the Appellant’s psychological condition. The Appellant’s condition must be such as to deny the Appellant the capacity to given an account of his or her experiences, to present arguments in support of his or her claims, to understand and respond to questions put to him or her.
The test has been succinctly summed up, with respect, by Tracey J in SZNCR at [30]:
Following SZNVW an applicant who has a diagnosed mental condition which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to be have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.
The Appellant’s evidence falls short of establishing that she was entirely unfit to attend the hearing in the sense of being unfit to give evidence, present arguments or answer questions.
The Appellant’s evidence that she heard the First Respondent read out the passages referring to the brevity of their relationship and his request to her to terminate the pregnancy is not borne out by the transcript.
It is apparent that the Appellant did suffer some form of anxiety attack or was otherwise so distressed that she ran out of the hearing room, which led to a short adjournment. However, she returned to the hearing room and the hearing continued. She did not tell the Tribunal that she was so unwell that she was unable to continue with the hearing. She did not seek an adjournment to another day.
The Transcript shows that after she returned, the Appellant participated in the hearing. She answered questions put to her by the Tribunal and made submissions about the First Respondent’s evidence, and she asked the Tribunal questions about which court would be appropriate if she were to make an application to have an assessment backdated.
The Appellant later that same day went to see Major D in a state of distress and complained about the Tribunal hearing and the way she felt she was treated by the Tribunal members. Major D’s evidence is unchallenged, but she is not a medical practitioner or a psychologist.
The evidence of Ms F, who is a treating psychologist, is that the Appellant consulted her, without an appointment, in a state of distress on a date in late January or early February. Ms F could not be specific about the date, nor did she take written notes, as the Appellant was not attending a scheduled appointment.
The Appellant did not consult Dr J until 28th February, more than a month after the Tribunal hearing. His evidence was based entirely on the history given to him by his patient and of his observation of her at the time. Unsurprisingly, he referred her to a psychiatrist, Dr B, who was able to see her that same day.
There was no affidavit from Dr B.
The Appellant forwarded two letters to the Tribunal in the days following the hearing, each one containing documents and making further submissions. The Appellant did not seek to reopen her case.
I am not satisfied on the evidence that the Appellant has demonstrated that she was unable, because of her psychological condition, to give evidence, present arguments, answer questions or make submissions at the Tribunal hearing. Consequently, the SSAT did not fail to accord procedural fairness to the Appellant by failing to adjourn the hearing.
In the light of those findings, the Appellant’s first, second and third grounds of appeal have not been made out.
The Appellant’s fourth ground of appeal complains that the SSAT erred failed to accord procedural fairness to the Appellant in failing to ask questions of the Respondent as to his financial circumstances on the Appellant’s behalf.
This ground must also fail, for two reasons:
a)The Tribunal did, in fact, ask the Respondent questions about his financial circumstances, as is apparent from pages 24 to 29 of the Transcript; and
b)It is no part of the Tribunal’s function to ask questions of a party on behalf of another party.
In SZNVW, Keane CJ (with whom Emmett J agreed) held at [36]:
The Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished.[47]
[47] [2010] FCAFC 41 at [36]
Whilst I believe that the above paragraphs provide reasons why the Appellant’s fourth ground must fail, I might add that the reliance by the Appellant on the guidelines set out by the Full Court of the Family Court in re F: Litigants in Person Guidelines[48], referred to in the decision of PJ & Child Support Registrar (SSAT Appeal)[49] at [53]-[54], is misplaced. With respect, the guidelines set out in Re F are intended to be guidelines for courts dealing with matters under the Family Law Act, being this Court, the Family Court of Australia and the various State courts of summary jurisdiction. Hearings by a court under the Family Law Act are essentially different from inquiries conducted by a tribunal. Consequently, in my view, with respect, the guidelines set out in Re F do not apply.
[48] [2001] FamCA 348; (2001) 27 Fam LR 517; FLC 93-072
[49] [2007] FMCAfam 829
The Appellant’s fourth ground of appeal fails.
The Appellant’s fifth ground of appeal asserts that the Tribunal “failed to accord procedural fairness to the Appellant and reached its decision having:
a. refused to take into account the submissions of the Appellant in her letter dated 27 January 2011;
b. failed to reconvene the hearing following the receipt of the Appellant’s letter dated 27 January 2011;
c. refused to take into account the submissions of the Appellant in her letter dated 31 January 2011; and
d. failed to reconvene the hearing following receipt of the Appellant’s letter dated 31 January 2011.
This ground is misconceived, with respect. The Tribunal had already made its decision on 25th January 2011, although it had not released its reasons.
The Appellant’s submissions in her letters dated 27th and 31st January 2011 were not forwarded to the First Respondent or to the Child Support Registrar, but only to the SSAT. It would have been a denial of procedural fairness to those parties if the Tribunal had taken those submissions into account after the evidence had closed, after the Tribunal had already made its decision, without reference to the other parties.
There is no power in the Child Support (Registration and Collection) Act for the SSAT to reconvene a hearing after a decision has been made. Section 103R of the Act empowers the Tribunal to adjourn a hearing but this only applies to a hearing that has not been concluded.
The Appellant’s fifth ground of Appeal.
As all of the Appellant’s grounds of appeal have been unsuccessful, it follows that the Appeal will be dismissed.
Costs
The Child Support Registrar seeks an order dismissing the Amended Notice of Appeal with costs fixed at $6,240.00, being the amount prescribed by Division 2 of Part 2 of Sch 1 to the Rules.
Any party wishing to pursue an order for costs may do so by way of a written submission accompanied by an affidavit setting out the way the amount of costs sought is quantified, such affidavit and submission to be filed and served within seven days. Any submission or affidavit in reply must be filed and served within a further period of seven days.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 7 June 2013
Key Legal Topics
Areas of Law
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Administrative Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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Procedural Fairness
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